ThinkAdvisor had an article about the 15 worst cities for nursing home quality.  They used federal surveys, fines, and quality measures published on CMS’ Nursing Home Compare.  CMS uses many different quality measures to rate nursing homes on a 5-star scale.

Unfortunately, South Carolina was not spared.

Georgetown, S.C. was #14 on the list.

Average occupied bed: 209

Average fine: $1,479

Total federal fines: $310,530

 

The CMS on published additional quality measures on Nursing Home Compare for skilled-nursing facilities. The release of the new quality data was mandated by Congress as part of the Improving Medicare Post-Acute Care Transformation Act of 2014. The IMPACT Act established the Skilled Nursing Facility Quality Reporting Program, which requires SNFs to report quality performance on several measures or risk a 2 percentage point Medicare payment reduction.

There are currently five measures included in the program: Percentage of SNF patients who develop new or worsened pressure ulcers; percentage of patients whose activities of daily living and thinking skills were assessed and related goals were included in their treatment plan; percentage of patients who experience one or more falls with major injury during their SNF stay; Medicare spending per beneficiary for patients in SNFs; and rate of successful return to home or community from a SNF.

The CMS opted not to add the potentially preventable 30-day post-discharge readmissions measure. The agency said it needs additional time “to determine if there are modifications that may be needed both to the measure and to the method for displaying the measure.”

The average rate of patients who developed new or worsening pressure ulcers during their stay in a SNF was 1.7%, according to the CMS. The average rate of patients whose activities of daily living and thinking skills were assessed and related goals were included in their treatment plan was 95.8%.  And the average rate of patients who returned home from the SNF and remained alive without hospitalization for 31 days after discharge was 48.6%.

There are other quality measures available on Nursing Home Compare like percentage of short-stay residents who report moderate to severe pain or percentage of long-stay residents who got an anti-anxiety or hypnotic medication.  More than 15,000 nursing homes in the U.S. have quality data on Nursing Home Compare.

    • CMS releases Skilled Nursing Facility (SNF) Quality Reporting Program (QRP) data

Nursing Home Compare now includes SNF QRP quality data that allows you to compare SNF providers by their performance on important indicators of quality. The following 5 SNF QRP measures are now being displayed on Nursing Home Compare:

Assessment-based measures:

        • Percent of Residents or Patients with Pressure Ulcers that are New or Worsened (Short-stay)
        • Application of Percent of Long-Term Care Hospital (LTCH) Patients with an Admission and Discharge Functional Assessment and a Care Plan that Addresses Function
        • Application of Percent of Residents Experiencing One or More Falls with Major Injury

Claims-based measures:

        • Medicare Spending Per Beneficiary
        • Discharge to Community
  • New quality of resident care measure for unplanned hospitalizations among long-stay residents
  • Beginning with the April 2019 Nursing Home Compare refresh, the downloadable database will be provided in .csv format only. We will no longer post the Access format.
  • Because we’re implementing a new Nursing Home health inspection process, CMS changed how the star ratings are calculated.

Arkansas’ highest court ordered election officials to not count votes for a proposal to limit damages awarded in civil lawsuits. Justices upheld a state judge’s ruling that the ballot measure limiting civil lawsuit damages unconstitutionally combined separate proposals. The measure also would have given the Legislature control over court rules in the state. The Arkansas Supreme Court ruled on the ballot measures days before early voting begins for the Nov. 6 midterm election.

The ballot measure blocked by the court would have capped civil damages at $500,000 for noneconomic losses, such as pain and psychological distress. It would cap punitive damages at $500,000 or three times the amount of compensatory damages awarded, whichever is higher. It also would cap attorneys’ contingency fees at one-third of the net amount recovered.

“We see this as a win for the people of the state of Arkansas, that the constitution has meaning and it supports people’s rights,” said Jeff Priebe, an attorney for the retired judge challenging the measure.

The proposal had faced opposition from many Christian conservatives, including a group that rallied churches and abortion opponents against the measure.

 

Newsday reported the bittersweet verdict for a daughter seeking answers and justice for their mother’s preventable death.  The nursing home resident died after her ventilator became disconnected at A. Holly Patterson Extended Care Facility nursing home.  The state attorney general’s office had alleged registered nurses Sijimole Reji and Annieamma Augustine, along with certified nurse aide Martine Morland ignored the patient’s ventilators alarms for nine minutes and 24 seconds.  Carmela Contrera was suffocating as the trio chatted at a nurse’s station less than 40 feet away from her room at the end of an overnight shift in December 2015.  She could not recover after such a delay. The woman died the next day while hospitalized.

The victim’s daughter said justice wasn’t served after a jury convicted three health care workers of only misdemeanors, a day after acquitting them of negligently causing the patient’s death. “My mother lost her life,” said Andrea Contrera, expressing disgust while leaving the courtroom after jurors delivered the second half of a two-part verdict. “I don’t feel that justice was served here.”

Defense attorneys contended their clients didn’t give emergency care to Contrera because an alarm never sounded throughout the unit to warn that the life support machine the patient needed to breathe was disconnected. They also told jurors evidence showed a respiratory therapist had “faked checking” ventilators and alarms and falsified reports, and claimed facility management set up employees to fail by understaffing the unit. 

In a partial verdict Monday, the jury acquitted the defendants of felony charges of endangering the welfare of a vulnerable elderly person and criminally negligent homicide. On a fifth day of deliberations, they convicted each defendant of a misdemeanor count of willful violation of public health laws — meaning they neglected Contrera by failing to provide timely and adequate treatment. The jury also convicted Morland of a felony charge of falsifying business records while acquitting her of another count of the same offense.

 

 

Previous studies have noted a lower quality of care in for-profit nursing homes, but those studies have typically focused on individual clinical effects. A new study looking at a broader list of neglect found that residents in for-profit homes are almost twice as likely to experience adverse health problems from substandard care.

New research from the University of Illinois at Chicago proves that residents in for-profit nursing homes have the highest risk of receiving neglect-related diagnoses, and its authors claim the industry needs stronger oversight across all facility types.  The team was led by Lee Friedman of UIC’s School of Public Health.  Friedman and the researchers used a developed metric, the Clinical Signs of Neglect Scale, to assess whether the patients experienced harmful or abusive treatment leading up to their hospitalizations; the figure adds extra weight to diagnoses strongly associated with neglect, such as broken catheters or pressure ulcers, and puts less emphasis on dehydration and malnutrition — signs that are more weakly associated with likely neglect.  In particular, “serious signs” of neglect were also more common among residents of for-profit facilities, including stage-three or four pressure ulcers and lack of access to medications aimed at managing chronic conditions.

 “Patients receiving care in for-profit institutions were diagnosed with substantially more clinical signs of neglect than patients residing in not-for-profit facilities and low-functioning, community-dwelling patients,” the researchers concluded. “As reported in prior research, for-profit facilities caring for the patients in this study were significantly inferior across nearly all staffing, capacity, and deficiency measures.”

Friedman and the team blamed pay disparity at for-profit SNFs for the findings.

For-profit nursing facilities pay their high-level administrators more, and so the people actually providing the care are paid less than those working at nonprofit places,” Friedman said. “So staff at for-profit facilities are underpaid and need to take care of more residents, which leads to low morale for staff, and it’s the residents who suffer.”

“Substandard care is a form of neglect and falls within the definition of elder abuse,” Friedman said. “We have a growing number of people who need services provided by nursing facilities, but the reality is that a third of nursing homes in Illinois receive below-average ratings by the Centers for Medicare & Medicaid Services. Substandard care puts residents at great risk for serious health issues.”

 

Skilled Nursing News reported on a new study that shows that the Medicaid program may be overpaying operators by billions of dollars per year.  Medicaid is the single largest payor for skilled nursing services, covering about 62% of all nursing home residents according to a 2017 analysis by the Kaiser Family Foundation.  A pair of economists from the University of California, Los Angeles and the University of Georgia published an extensive analysis of Medicaid spending in nursing homes, determining that longer stays in SNFs don’t lead to better outcomes for residents — and thus the government shouldn’t necessarily pay for as many patient days.

“Since we find no evidence that longer stays lead to health improvements, this difference points to Medicaid overspending of … $5,480 per Medicaid stay or about 18.6% of Medicaid spending per nursing home stay,” Martin Hackmann and R. Vincent Pohl wrote in their research, published as an issue brief by the National Bureau of Economic Research. “Multiplying this fraction with national Medicaid nursing home spending of $55 billion in 2015 suggests annual savings of up to $10.2 billion.”

The researchers specifically looked at nursing home residents who started paying for services out of pocket; Medicaid covers skilled nursing care for income-qualified residents, typically after they exhaust their personal resources.  The pair found that nursing homes tend to retain residents longer in periods of low occupancy, but increase discharges of Medicaid beneficiaries once that figure hits around 89%, as they attempt to seek out the highest paying self-funding residents.

“At lower occupancies, nursing homes benefit from extended Medicaid stays, to the extent that Medicaid rates exceed the marginal cost of care. At higher occupancies, this incentive is muted because nursing homes prefer to occupy their scarce beds with more profitable private payers,” they wrote. “In contrast, private payers’ home discharge rates vary little (between 1.7% and 2.1%) and not systematically with occupancy.”

At the same time, the researchers didn’t find a solid connection between longer lengths of stay and health outcomes, noting that the one-year hospitalization rate was actually lower for Medicaid residents at high-occupancy nursing homes, when they were most likely to be discharged.

“Overall, we conclude that marginal Medicaid beneficiaries appear to be relatively healthy,” they wrote. “We also find no evidence that longer stays lead to improved health outcomes suggesting that longer nursing home stays (on this margin) likely constitute over-utilization of nursing home care.”

 

With the emergence of email and text technology, large amounts of ESI – Electronically Stored Information – are available to discover in litigation.  The Courts are trying to keep up by creating reasonable and workable rules to preserve, request, and share ESI in litigation. There are many cases that provide guidance on what is reasonable to do and expect. The big question is determining what sources of ESI should be preserved and for how long without being penalized for “destroying” the evidence.

The Federal Rules of Evidence have addressed spoliation in the ESI context via Rule 37(e), which was amended in 2015. The amended rule essentially breaks ESI spoliation down into two categories: (1) Negligent; and (2) Intentional.

For the first category, if a party fails to take reasonable steps to preserve ESI and the lack of that evidence is harmful to the requesting party, then the court can take measures it deems appropriate to cure the harm.  See, for example, ILWU-PMA Welfare Plan Bd. of Trustees v. Connecticut General Life. Ins. Co., No. C 15-02965, 2017 U.S. Dist. LEXIS 10529 (N.D. Cal. Jan. 24, 2017). In that case, the defendant company was owned by a parent company who sold off one of its other entities. That entity possessed computer servers but deleted important information despite an agreement in the contract for sale prohibiting destruction of information on the servers.  The court  determined that defendant should have done more to retain its ESI before the sale, and imposed monetary sanctions.

On the other hand, if the court finds the loss of ESI is intentional, the court can take sanction the party. Sanctions can include instructing the jury to assume the “destroyed” information was unfavorable to the party who “destroyed” it; or the court can dismiss the case or grant a default judgment in favor of the requesting party.

In O’Berry v. Turner, No. 7:15-CV-00064-HL, 2016 U.S. Dist. LEXIS 55714 (M.D. Ga. Apr. 27, 2016), the plaintiff sent the defendant trucking company a preservation letter. The trucking company printed out one paper set of the electronic driver logs from its vendor. Later, it was discovered that the paper copy had been lost in an office move and the electronic records were no longer available from the vendor. The court in that case found that the trucking company’s practice of simply printing one paper set of the records was not a reasonable enough step to preserve the information. So, while the trucking company did not “intentionally” destroy the records, they did “intentionally” fail to put a better system in place for preserving the records, which was enough for the court to impose a serious sanction.  Parties must do more than the bare minimum of printing out one paper set of electronic driver logs.

In Barry v. Big M Transportation, Inc., No. 1:16-CV-00167-JED, 2017 U.S. Dist. LEXIS 146691 (N.D. Ala. Sept. 11, 2017), one of Big M’s trucks was involved in a collision with the Barrys. Following the collision, the truck was towed from the scene and within the next 48 hours was driven from the tow yard back to Big M. The law enforcement officers who wrote the accident report indicated the collision was caused by the Barrys’ improper parking. Big M received a letter from the Barrys’ attorney requesting that Big M preserve the black box data from the truck. However, the truck had undergone repairs from the collision and was sold, and the information was no longer available.

The Barrys argued that Big M should be sanctioned for failing to preserve the ESI before or after their preservation letter. That Big M should have known that litigation was likely to ensue and it should have taken steps to preserve the evidence. The court found Big M guilty of spoliation. The court believed that Big M should have reasonably foreseen that litigation would ensue from such a serious collision. Further, the court believed Big M should have at least attempted to comply with the preservation letter before releasing the truck to the buyer.

However, the court did not impose the severe sanctions reserved for those who intentionally deprive their opponent of ESI. The court acknowledged that even though Big M’s actions were technically intentional, the court decided that as a sanction it would allow the Barrys to point out that Big M failed to preserve the ESI and that the parties could then make arguments to the jury as to why the evidence was not maintained and what inferences should be drawn from that.

A staff member at Lexington Rehabilitation and Healthcare nursing home is accused of raping a resident.  Police showed up to Lexington  after an employee told managers she saw another worker sexually assaulting an elderly resident.

44-year-old Thomas Nganga is accused of the alleged crime. He was working here at the Lexington Court nursing home when police say he raped a resident.

“Our hearts are broken,” Lexington’s Administrator Jonathan Hamilton said. Imagine how the victim’s family feels!

“Are there not guidelines in place or some type of structure to ensure that doesn’t happen?” NBC12 asked.

Hamilton responded saying background checks were conducted on all staff members and while there isn’t hired security on the grounds, there is a supervisor on site around the clock.

You can imagine the impact an allegation like this can have on a patient’s family. So what can you do if you or someone you know has a complaint with a nursing home?

“Sometimes issues with care can occur,” a video uploaded to the Virginia Department for Aging and Rehabilitative Services’ Facebook Page relayed. The group is on a mission this month to ensure nursing home residents know their rights and can get help.
“There are a wide range of things and what we are there to do is meet that person where they are to serve as an advocate in whatever capacity they may feel comfortable with us doing that,” the video continues.

The tragedy at Lexington finds even the nursing home’s top staffer stunned.